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The role of the UKSC recently determined following Chester and McGeoch

About The Author

Thomas Horton (Former Writer)

Thomas studied Law at the University of Birmingham, and graduated with a 2:1 in July 2013. In the elapsed time, Thomas has worked for law firm HowardKennedyFsi LLP as a paralegal in the property department. Thomas has also been awarded a Major Scholarship by the Honourable Society of the Inner Temple and will begin the BPTC with City Law School in September 2014.

Summarily, the facts of the case are as follows: Chester and McGeoch, who are convicted murderers serving long imprisonment, claimed (Chester only) that their disenfranchisement (the removal of the right to vote) whilst imprisoned amounted to a breach of their rights under the European Convention on Human Rights (ECHR). In particular, following the decision of the European Court of Human Rights (ECtHR) in Hirst (No. 2), where it was held that the United Kingdom's rules on disenfranchisement (Representation of the People Act 1983) were contrary to Article 3 Protocol 1 ECHR. Chester and McGeoch also claimed under European Law, however, no right to vote could be found under the European Union's jurisdiction. The UK Supreme Court (UKSC) dismissed both appeals under the ECHR (following its applicability through the s. 1 of the Human Rights Act 1998) and European Law. The way the UKSC arrived at that decision has, in a Marbury v Madison fashion, determined the UKSC's constitutional position on the protection of human rights.

To understand Chester and McGeoch in a Marbury-fashion, it is necessary to recapitulate the constitutional effect of the US Supreme Court's (USSC) decision in that latter case. Chief Justice Marshall resolutely held that 'it is emphatically the province and duty of the judicial department to say what the law is.' Within the realms of judicial review, the US Supreme Court determined that no form of law was higher than the US Constitution. Accordingly, the US Supreme Court assumed the power to declare void acts of Congress in conflict with the Constitution and the rights that are embodied within. The US Supreme Court is equal in power to Congress and President; the decision of Marbury defined the constitutional place of the US Supreme Court.

Consequently, whilst there may not be another court like the USSC that acts with such authority in upholding their national constitution, it has also drawn criticism. For example, tags such as a 'government of judges' (Hersch Lauterpacht) demonstrate the strain upon a judiciary that has been placed on an equal level to the other branches of government. In comparison, and as the decision of Chester and McGeoch demonstrates, the UKSC does not carry the same assumed authorized power that the USSC established. Inductively, the UKSC's role as a protector of rights has been constructed in a considerably piecemeal fashion.

The recipe: take one Magna Carta, whisk together with the Habeas Corpus Act and the Petition of Right, a sprinkle of the Bill of Rights, and add a generous dollop of the Human Rights Act 1998. Add the Constitutional Reform Act 2005 to taste. Bring all of this to the boil, but avoid usurping Parliamentary Sovereignty. Add a splash of Strasbourg jurisprudence and a heap of common law. Once taken out of the pan allow the mixture to cool, and wait for a new Supreme Court to crystallize on top before serving. Garnish with the Treaty of Lisbon and Equality Act 2010. Bon appétit!

-- © 2013 Thomas Horton

The decision of the UKSC in Chester and McGeoch represents the judiciary's position on how it affords protection to rights, and its position as one of the three branches of government. As a starting point, and in clear contradistinction to the USSC, one must recognize that the UKSC will act 'extremely slow[ly]' where there is an occasion for a declaration of incompatibility of UK law with the ECHR (s. 4(2) Human Rights Act 1998). Nevertheless, Lady Hale DPSC hints at the role that the UKSC could be placed in:

If there is a Constitution, or a Bill of rights, or even a Human Rights Act, which guarantees equal treatment in the enjoyment of its fundamental rights, including the right to vote, it would be the task of the courts, as guardian of those rights, to declare the unjustified exclusion unconstitutional.

That passage clearly marks what the UKSC is not, as the UKSC does not declare an Act of Parliament unconstitutional, merely incompatible with Convention Rights. The position of the UKSC, following s. 3(1) HRA 1998, is to interpret legislation 'so far as it is possible to do so… in a way which is compatible with the Convention rights.' Further, in accordance with s. 2(1) HRA 1998, when the UKSC is called upon to interpret the rights in question, reference to the decisions of the ECtHR must be made. However, UK decisions on the interpretation of Convention Rights have developed a feature that allows the UKSC to not follow an interpretation given to a Convention Right by the ECtHR, based upon s. 3(1). Moreover, I believe that Laws LJ's call for a revisit of the Ullah principle has been answered by Lord Sumption JSC's judgment in Chester and McGeoch.

The ECtHR’s decisions in Hirst (No. 2) and Scoppola (a later decision of the ECtHR which affirmed the decision in Hirst (No. 2)) created a conflict as to whether the United Kingdom should amend the Representation of the People Act 1983 so as to give some prisoners the right to vote. In reflection of the lack of synchronization between the law of nations around the world on disenfranchisement, Lord Sumption validly stated that 'in any democracy, the franchise will be determined by the domestic laws which will define those entitled to vote in more or less inclusive terms.' It is this basis that creates the necessity for further dialogue between the UKSC and Strasbourg to ensure that the position of disenfranchisement in the UK is correctly advocated to Strasbourg to determine that the UK is not breaching a convention right, or at least acting within its margin of appreciation.

Therefore, whilst the decisions of the ECtHR determine that there should not be a blanket ban on prisoners voting, concurrently 'there is no democratic mandate for the enfranchisement of convicted prisoners.' Clearly there is a conflict here when considering the obligations of the UKSC aforementioned under s. 2(1) HRA 1998. Moreover, Article 46.1 of the ECHR provides an international obligation for the UK to abide to decisions of the ECtHR in any case to which it is a party. Nevertheless, and as a prelude to the clarification of the deliberative relationship between the United Kingdom and Strasbourg Lord Sumption states:

Whatever may be meant by “taking into account” a decision of the Strasbourg Court, it is clearly less than an absolute obligation. The international obligation of the United Kingdom under Article 46.1 goes further than section 2.1 of the [1998] Act, but it is not one of the provisions to which the Act gives effect.

By recognizing that the disenfranchisement of convicted prisoners is not a fundamental feature of the law of the UK, as it can be missed by an occasion such as a '… special anniversary, [or] a long anticipated holiday…' the UKSC demonstrated their concern of simply following the ECtHR decisions due to the necessity for a democratic mandate to adopt the position decided by Strasbourg. What is needed, and demonstrated by Lord Sumption JSC's reference to Lord Phillips' decision in R v Horncastle, is 'valuable dialogue between the domestic court and the Strasbourg court'. 'Exceptionally delicate issues' cannot be decided simply by relying on Strasbourg jurisprudence; and indeed this approach is what resulted in David Cameron's analysis of the UKSC's judgment being a 'great victory for common sense.'

Nevertheless, '[t]here is no realistic prospect that further dialogue with Strasbourg will produce a change of heart.' The collective decision of the UKSC demonstrates the need for 'Parliament as the democratically elected legislature to complete its consideration of the position' (Lord Mance JSC). Consequently, and because of the unlikelihood of a change of heart by Strasbourg, 'it would be neither wise nor legally defensible for an English court to say that article 3 of the First protocol has a meaning different from that which represents the settled view of the principle court charged with its interpretation, and different from that which will consequently apply in every other state party to the Convention.' The deliberation that has already taken place between the UK and Strasbourg demonstrates a principled approach to prisoners' voting rights, and is reflective of the way human rights were entrenched into domestic law with a continuing respect for parliamentary sovereignty.

A declaration of incompatibility was not necessary, yet the UKSC recognized and upheld the jurisprudence of Strasbourg on prisoners' voting rights. The decision is tantamount to the most subtle, and effective judicial activism that could be desired. Judge Paul Mahoney stated in a recent lecture at Inner Temple that the relationship between Strasbourg and the UK has been a relationship that has contributed greatly to the development of human rights protection in Europe. I believe summarily that this excerpt from Research Paper 98/24 of the Human Rights Bill provides the essence of the UKSC role, which has been crystallized by Chester and McGeoch:

We are not ceding new powers to Europe. The United Kingdom already accepts that Strasbourg rulings bind. Next, the Bill is carefully drafted and designed to respect our traditional understanding of the separation of powers. It does so intellectually convincingly and, if I may express my high regard for the parliamentary draftsman, elegantly.

The design of the Bill is to give the courts as much space as possible to protect human rights, short of a power to set aside or ignore Acts of Parliament.

By entering into the constructive dialogue that has been affirmed by the UKSC in Chester and McGeoch, the UKSC has determined how the protection of Human Rights should be developed and protected. In regards to prisoners' voting rights, the responsibility has been left with Parliament, and one can only hope that the Voting Eligibility (Prisoners) Bill is passed to represent the UK's obligations. Not only does the position demonstrate the importance of the relationship between the national and supranational court, it also determines the constitutional mechanism that is applied to hold Parliament to account in a manner that has been thoroughly deliberated. Therefore, by avoiding the politicized tendencies that are present in the USSC, the UKSC has developed and defined a method of human rights protection that satisfies the needs and wants on the national and international level. Sir Hersch Lauterpacht stated that 'it is the duty of the student of international law to bring into relief the complexities of such innovation in the constitutional law of mankind.' If I may therefore be so bold to correlate the Justices of the Supreme Court to those students of international law: I believe that the Justices of the Supreme Court have provided the innovative thought necessary to resolve the complexities in the constitutional law of mankind via this deliberative mechanism.

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Tagged: Constitution, Human Rights, Rule of Law, Supreme Court

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